New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”
A few years ago we reported on an important development in Ontario privacy law in a case called Jones v. Tsige, where the Ontario Court of Appeal recognized a new cause of action called “intrusion upon seclusion”. We discussed how this can tie into former spouses’ desires to snoop on each other in a Family Law dispute context.
Recently, another important case – this time from the Supreme Court of Canada – expands on the nature and scope of the privacy rights to which all Canadian citizens are entitled.
In a criminal law case called R. v. Jarvis, the background facts involved a high school English teacher who surreptitiously recorded videos of female students using a camera hidden in a pen. The recordings were of the students engaging in ordinary, school-related activities, in the common areas of the school. Most of the videos focused on the students’ faces, upper bodies and breasts. The students had not consented to being recorded, and were unaware they were being filmed.
In the context of confirming the teacher’s conviction for the criminal offence of voyeurism, the court considered the question of whether the students had a “reasonable expectation of privacy” in this scenario. This was relevant because the offence of voyeurism is defined to be one where a person surreptitiously observes or makes a visual recording of another person for a sexual purpose, when that other person is in circumstances that give rise to such a reasonable privacy expectation.
The Supreme Court in Jarvis noted that “privacy”, as it is ordinarily understood, is not an all-or-nothing concept. The question of whether this teacher’s surreptitious recordings were a breach of the students’ privacy required a review of the entire context in which they were made, and on a number of factors. These included the location, the students’ level of awareness, their relationship with the teacher, the manner in which the recordings were made, their subject-matter, the activity the students were engaged in when the footage was filmed, and any rules, regulations or policies that impacted the use of recordings.
The Court added that the crime of voyeurism was defined to include reference to the “circumstances” that gave rise to a reasonable expectation of privacy. This suggested that elements of the offence are not governed solely by location, and it can be committed in public spaces, not just private ones. This definition also allowed courts to take broader account an offender’s use of evolving recording technology, when deciding whether the crime has been committed.
Importantly, the Court stated that in examining privacy expectations, it could reflect on and incorporate the huge body of prior case law under s. 8 of t he Canadian Charter of Rights and Freedoms, which enshrines citizens’ rights against unreasonable search and seizure. The Court in Jarvis concluded that it:
… opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law…
With that vast body of case law to draw from, the Court concluded that societal perceptions of when privacy can be expected are “informed by our fundamental shared ideals about privacy as well as our everyday experiences.”
Using this framework, the Court concluded that in all the circumstances the teenaged high school students would have had a reasonable expectation that they would not be recorded in the manner they were. It upheld the teacher’s conviction for voyeurism.
Although Jarvis is a criminal law decision, it will no doubt inform issues around the law of privacy as they arise in other legal contexts, including Family Law disputes.
For the full text of the decisions, see:
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